Citation Nr: 9914435
Decision Date: 05/24/99 Archive Date: 06/07/99
DOCKET NO. 98-15 911 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Determination of an initial rating for service-connected post
traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Kenneth M. Carpenter, Attorney
at Law
ATTORNEY FOR THE BOARD
Howard M. Scott, Associate Counsel
INTRODUCTION
The veteran had active service from August 1959 to January
1980.
This appeal to the Board of Veterans' Appeals (Board) arises
from a January 1998 rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Muskogee,
Oklahoma, which granted service connection for PTSD and
assigned a 30 percent evaluation for that disability.
The Board notes that the veteran's appeal is to the January
1998 initial rating decision, which granted service
connection for PTSD, evaluated as 30 percent disabling,
effective from June 1997. This decision was placed in
appellate status by a notice of disagreement (NOD) received
in May 1998 and a substantive appeal received in September
1998. The RO has characterized this issue as evaluation of
PTSD. In June 1998, the RO increased the evaluation for PTSD
from 30 to 50 percent, effective March 1998. The veteran has
also taken exception to this rating decision, asserting that
the effective date assigned for the 50 percent evaluation
should be earlier than March 1998. To perfect his appeal to
the June 1998 decision, he submitted an NOD in September
1998, and a substantive appeal in December 1998. The RO, in
turn, has treated the issue of entitlement to an earlier
effective date for a 50 percent evaluation for PTSD, as
separate from the issue of evaluation of PTSD.
Pursuant to a recent decision of the United States Court of
Appeals for Veterans Claims (Court), however, the
determination of the initial rating in a grant of service
connection encompasses any sub-issues concerning "staged
ratings" that may arise during the course of the appeal.
See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The
Court noted that "at the time of an initial rating 'separate
ratings can be assigned for separate periods of time based on
the facts found,' a practice known as 'staged' ratings."
Fenderson, 12 Vet. App. at 126. Thus, the issue of the
effective date for a 50 percent evaluation for PTSD is
encompassed in the issue of the appropriate evaluation for
PTSD. Such "sub-issues" remain in appellate status and
require no separate NOD or substantive appeal, as long as an
appeal to the overall
issue, the determination of the initial rating for an
original grant of service connection, has been perfected.
In November 1998, the veteran submitted a claim of
entitlement to a total disability evaluation based on
individual unemployability due to a service connected
disability (TDIU). That issue, however, is not currently
developed or certified for appellate review. The issue of
entitlement to TDIU is referred to the RO for appropriate
action.
REMAND
In November 1998, shortly after the case was certified for
appeal and sent to the Board, the veteran submitted
additional evidence relating to his claim for an evaluation
in excess of 50 percent for PTSD. This evidence has not been
considered by the RO. The veteran did not waive
consideration of this evidence by the RO, as required under
38 C.F.R. § 20.1304 for the Board to consider the additional
evidence in the first instance, and therefore this case will
be remanded so that the RO may initially consider the
additional evidence.
Furthermore, at a VA psychiatric examination in May 1998, the
examiner recommended that the veteran undergo psychological
testing to help differentiate the impairment attributable to
the Axis I diagnosis of PTSD from an Axis II diagnosis of
histrionic traits. When a claim, such as a claim of
entitlement to an increased disability evaluation, is well
grounded, VA is required, under 38 U.S.C.A. § 5107(a), to
conduct a supplemental examination, when one is recommended
by VA's own physician. Hyder v. Derwinski, 1 Vet. App. 221,
225 (1991). Therefore, while this case is in remand status,
the veteran will be permitted an opportunity to submit to
additional psychological and psychiatric evaluations. In
this connection, the Board advises the veteran that, when a
claimant, without good cause, fails to report for a necessary
VA examination, a claim for an increased rating shall be
denied. 38 C.F.R. § 3.655(1998).
Accordingly, this case is REMANDED for the following action:
1. The RO should arrange for the veteran
to undergo psychological testing and
psychiatric evaluation. The examiners
should review the veteran's medical
records in the claims file and a copy of
this REMAND. The examiners should
determine the severity of PTSD and of any
other identified psychiatric entities.
To the extent possible, the examiners
should differentiate the social and
industrial impairment attributable to
service connected PTSD from the social
and industrial impairment attributable to
all other identified psychiatric
entities, to include any Axis II
disorders.
2. The RO should then re-evaluate the
veteran's claim based on all of the
evidence of record. Pursuant to
Fenderson, the RO should encompass the
issues of evaluation of PTSD, and
entitlement to an earlier effective date
for a 50 percent evaluation for PTSD, as
one issue, defined as determination of
initial rating for service-connected
PTSD. In addition, the RO should
determine whether the facts warrant
"staged ratings," or whether they
warrant a single rating, for the entire
time period in question. When this has
been done, and if the benefits sought are
not granted, the case should be returned
to the Board for further appellate
consideration, after compliance with
appropriate appellate procedures,
including issuance of a supplemental
statement of the case.
No action by the appellant is required until he receives
further notice. The Board intimates no opinion as to the
ultimate disposition warranted in this case, pending
completion of the requested development.
JAMES A. FROST
Acting Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims (known as the United
States Court of Veterans Appeals prior to March 1, 1999).
This remand is in the nature of a preliminary order and does
not constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1998).